Posted by Marian Exall in The Human Element HR News And Notes For Bankers
"Working from Home"--a new oxymoron?
* * *
This month, I'm going to indulge my inner curmudgeon and tell you all the reasons I do not like this oft-requested solution to a multitude of workplace issues. Call me the Grinch or a grouch, or just plain cynical, but I think working from home poses more problems for banks than it solves.
And it's really hard to undo when that realization sinks in.
We have the technology
First, some context. Back in the Dark Ages--the early 1990s--for the first time a critical mass of white-collar workers had home computers with the possibility of internet connection, and "telecommuting" was born.
For some employers, this was a tremendous innovation, allowing a substantial savings in overhead. It was extremely popular with employees, who no longer had to battle traffic to get to their place of work, or even get out of their jammies, for that matter.
And for some jobs, such as routine data entry and some types of telephone sales, it worked.
The problem arises when working from home is seen as an easy alternative to coming to work in a wide variety of jobs. Some jobs, including most in retail banking, are just not suitable for doing at home, no matter how advanced communications technology has become.
A reasonable accommodation?
This issue has been highlighted since the passage of the Americans with Disabilities Amendments Act (ADAA) in 2008. The ADAA effectively answered the question: Who is covered under the Americans with Disabilities Act (ADA)?
Essentially, the answer is, everyone.
Disability is now so broadly defined that the primary question has become: How can we reasonably accommodate the disabled individual in the workplace?
The disabilities most often reported are the invisible ones: stress, depression, bad backs. The accommodation most often requested by disabled workers and their healthcare providers is "time off."
When paid time off for sickness or vacation is exhausted, the requested accommodation may become "working from home."
However tempting, you should not immediately accede to this request.
As a manager or HR professional, you may believe you are saving yourself time and aggravation. But it will cost you in the long run.
Interactive process is essential
The regulations do not require you to make the accommodation requested by a disabled employee. Instead, they describe a dialog which you should engage in with the employee and his/her healthcare provider to determine what reasonable accommodation will best allow the disabled worker to perform the essential functions of the job without incurring undue hardship on the bank.
The key to this interactive process is the job description.
There are many things to think about in drafting or updating a job description. With regard to ADA compliance, make sure it accurately reflects the physical aspects of the job, even when the job seems at first glance to be a purely intellectual one. Included in "physical" would be any requirement for face-to-face interactions. For example, I would argue that any job involving supervision of other employees will require in-person contacts. Spell that out in the job description.
With the job description in hand, discuss with the employee how his condition might limit the ability to perform specific job functions. Share the job description with the healthcare provider. Send it with a form that asks questions about the individual's abilities to perform the job. (ELC's Bankers HR ToolkitTM includes an example of such a form.) Accurate medical information is crucial in determining a reasonable accommodation.
Once you have input from both the employee and the healthcare provider, look at the whole range of possible accommodations: equipment or work-space modifications, job restructuring, reassignment of collateral duties, transfer to a vacant position, or procedural and schedule modifications. Discuss possible accommodations with the employee before settling on the one that will best permit the employee to perform the job without imposing an undue hardship on the bank or other employees.
A compliance nightmare
Why is working from home low on my list of reasonable accommodations for disabled employees? Much of our alphabet soup of employment laws has been developed on the assumption that a worker leaves home and comes to a separate workplace to work.
Take, for example, the Fair Labor Standards Act (FLSA), which requires the payment of overtime for hours worked in excess of 40 a week. The bank can prevent "off the clock" work at its own premises, but not when an employee works from home.
If the employment relationship sours, you may be faced with a claim for unpaid overtime, based solely on the employee's recollection of the hours spent slaving away. If the employee also claims his position was wrongly classified as exempt from overtime pay, the bank could be facing an expensive and far-reaching lawsuit.
Another example: The Occupational Safety and Health Act (OSHA), requires employers to provide a safe and healthy workplace, but the bank has limited control over working conditions at the employee's residence.
Will workers' compensation cover a slip and fall in the employee's home?
Perhaps more important than the issue of demonstrating legal compliance is the management problem posed by having a subordinate work from home.
While monitoring technology such as cameras and GPS tracking is available, its use in a private home seems overly-invasive and probably repugnant to most banking bosses and workers alike.
Yet to effectively motivate, manage, and evaluate performance in any but the most mechanical routine jobs there must be frequent interaction.
Could this be done via telephone and e-mail? Perhaps, but I'm still old-school enough to think that personal interaction is better.
A temporary solution
In spite of everything I've said, working from home might be the right solution for a particular situation. In that case, carefully document the interactive process that led to this conclusion, as well as performance expectations, work schedule, reporting format and frequency, and other key terms and conditions for the working-from-home arrangement.
Above all, set a time limit, with a commitment to review the employee's medical condition with the employee and the healthcare provider to determine if the accommodation is still required, or if there is another that might now be more suitable.
Numerous studies have shown that returning a disabled worker as quickly as possible to the regular job in the regular workplace, even with some modification of duties or schedule ("work hardening") is the best route to total recovery.
It also avoids morale problems with co-workers who may feel envious when another employee is permitted to work from home, and with the home-worker herself, who may feel isolated and disengaged from the bank, and the world of work generally.
Feb. 13: ABA Telephone Briefing:
"Second Obama Administration--New Employment Obligations and Risks"
On a completely different subject ....
On Feb. 13 at 2.00 pm EST, I am participating with Cris Naser from the ABA Center for Securities, Trust and Investment, and Steve Greene with the law firm of Helms & Greene on a panel discussing what banks should expect from re-energized government agencies such as the Office of Federal Contract Compliance Programs and the National Labor Relations Board. The telephone briefing will also cover a round-up of litigation and legislative trends going into 2013.
You can get more details and register online here. Or call 800-775-7654.
|About Marian Exall
Marian Exall (firstname.lastname@example.org) is an employment lawyer and HR professional with more than 25 years' experience advising banks and other employers on compliance issues. She is a principal and co-founder of Employment Law Compliance, Inc. which provides HR compliance solutions to banks exclusively through the American Bankers' Association. She is a frequent speaker and writer on human resources compliance in the banking industry, including in ABA Banking Journal, on ABA Telephone Briefings, and at national and state bankers' association conferences.
For more information on this or other employment compliance topics, please call Employment Law Compliance at 866-801-6302 or go to www.employlawcompliance.com. You can get word about these columns the week they are posted by subscribing to ABA Banking Journal Editors Report e-letter. It's free and takes only a minute to sign up for. Click here.